Explained: What is NJAC Which Govt Might Reintroduce & Why is it Controversial?

(This article has been updated. It was first published in December 2021.)Over the decades, there has been a significant conflict over how judges of the higher judiciary – the high courts and the Supreme Court of India – should be appointed.The Collegium system of appointment of judges is once again facing criticism following claims of cash being found at Delhi High Court judge Yashwant Verma's home—sparking renewed debates about the National Judicial Appointments Commission (NJAC) Act, which the Supreme Court had earlier declared unconstitutional.But what is the NJAC? Why is there talk of having to 'reintroduce' it? And why is it controversial? The Quint explains.In the Constitution, Article 124 deals with appointment of Supreme Court judges, while Article 217 deals with appointments of high court judges. Both these provisions say that the judges are to be appointed after "consultation" with appropriate judges of the apex court/the Chief Justice of India.Initially, this was taken to mean that the Central government had the final say and could reject the views of the judges when it came to deciding who would be appointed to the top court.How Are Judges of the Supreme Court Appointed and Removed?The Supreme Court itself upheld this back in 1981 in the First Judges Case, despite many controversies during Indira Gandhi's tenure as Prime Minister, when she and her government sought to create a 'committed judiciary'. In 1993, a nine-judge bench of the Supreme Court changed this up in the Second Judges Case, holding that the word “consultation” should be read as “concurrence” as judicial independence was part of the Basic Structure of the Constitution, and this could only be protected if judges had primacy when it came to appointments. A new system of appointments was formulated, whereby the CJI was to have primacy when it came to judicial appointments, with the consultation of the next two senior-most judges of the Supreme Court. Thus was born: the Collegium.In 1998, the then President KR Narayanan made a reference to the Supreme Court to settle the question once and for all. Questions had arisen as to whether the “consultation” needed to take place with the Collegium/other judges or if the opinion of just the CJI was enough.Another nine-judge bench set out the conclusive position in 9 guidelines, in the Third Judges Case. It was concluded that the CJI could only recommend judges for appointment after consultation with the other four judges, and any candidate has to be supported by a majority of the Collegium.For Supreme Court appointments, the Collegium was also expanded to include the CJI and the next four (up from two) senior-most judges. For high court judges, it was still three in total.Once the Collegium makes a recommendation to the President, the President can either accept it or send it back to the Collegium for reconsideration. If the Collegium once again recommends that candidate for appointment, the President is bound by the recommendation.The final position is thus that even though the formalities need to be performed by the President, the actual decision-making power when it comes to appointment of Supreme Court judges rests with the Collegium.There were several attempts to create a commission for the appointment of judges over the years, starting with a Bill in 1990 which was along the same lines as the Collegium system.The Atal Bihari Vajpayee government, based on the recommendations of the Justice Venkatachaliah Commission report in 2002, suggested replacing the Collegium with a National Judicial Commission and tried to introduce a law on this in 2003. However, it was unable to get it through the Lok Sabha before its term ended.The idea behind this commission was now to reintroduce some involvement of the Executive in the appointment of judges of the higher judiciary, by having the Law Minister as part of a five-member commission alongside three judges of the Supreme Court and an 'eminent person'.In 2013, the UPA-II government also tried to introduce a Judicial Appointments Commission, showing the idea had clear cross-party support. By now, it was envisaged that the commission should have six members, including two 'eminent persons'.Again, however, the government's term ended before the law could be passed. When Narendra Modi swept to power in 2014, his government made bringing in a commission for judicial appointments a priority. In August 2014, Parliament passed the constitutional amendment Bill to create the NJAC, as well as the National Judicial Appointments Commission Bill to regulate how it would function.Both Bills were ratified by 16 state legislatures and the President gave his assent on 31 December 2014. The framework came into force on 13 April 2015.The composition of this new NJAC was essentially the same as the 2013 proposal: The Chief Justice of IndiaThe two senior-most judges of Supreme Court The Union Law Minister Two ‘eminent persons' These eminent persons were to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of Opposition in the Lok Sabha, and are not eligible for re-nomination.One of the ‘eminent persons’ had to be from a Scheduled Caste, Scheduled Tribe or Other Backward Caste; as had been suggested by a Parliamentary Standing Committee which had reviewed the 2013 proposal.The clashes between Indira Gandhi and the judiciary had left deep scars, and a fear of Executive interference in the appointment of judges. The 1970s had seen transfers of judges, supersession of those who were supposed to become CJI, and a breakdown of a previously civil relationship between the two branches, which left the Judiciary and the legal community largely of the view that the Executive should not have a say in judicial appointments.This fear was why the Collegium system, despite its opacity and the lack of diversity it fostered, was considered the best way to ensure judicial independence.The NJAC framework established by the constitutional amendment and the NJAC Act, despite its popularity among politicians and MPs, was viewed by many in the Judiciary as a threat to that independence.This was because of a few reasons:The judicial members of the NJAC did not have a majority in terms of numbers as they accounted for three out of the six members.The Union Law Minister was officially being made part of the NJAC, which gave the Executive a direct say in appointments.No qualifications were prescribed for the two 'eminent persons', who could end up being overtly political appointments since the CJI was outnumbered in the panel to select them.According to Section 5 of the NJAC Act, if any two members disagreed with a particular recommendation, then that would work as a veto against the recommendation – this meant that the Executive could block an appointment of a judge with the votes of the Law Minister and any one 'eminent person'.On 16 October 2015, a five-judge bench of the Supreme Court held, by a 4:1 majority, that the NJAC framework was unconstitutional. The reasoning of the majority (then-CJI JS Khehar along with Justices AK Goel, Madan Lokur and Kurian Joseph) was as follows:Independence of the judiciary (and separation of powers) are part of the ‘Basic Structure’ of the Constitution.Judicial primacy when it comes to appointments (ie, the primacy of the view of the CJI in consultation with other senior judges) is essential to independence of the judiciary.The NJAC system takes away primacy of the judiciary in judicial appointments, since only half its members are judicial members. Therefore, it seeks to alter the Basic Structure of the Constitution.The presence of the Union Law Minister on the NJAC is a violation of the principle of separation of powers and is therefore also a violation of the Basic Structure.As a result, the majority struck down the constitutional amendment and the NJAC Act and restored the Collegium system. Justice Jasti Chelameswar dissented from the majority view, holding that the NJAC didn't necessarily affect independence of the judiciary.Even though the Collegium system was restored, the majority in the NJAC judgment acknowledged there was a need to reform the process. Unfortunately, no reforms have been undertaken in the years since, and even the new Memorandum of Procedure that was supposed to be formulated for appointment of judges has not come into being.A Scandal in the Capital: The Missing Links in Justice Yashwant Varma's Cash RowIn the years since, the criticisms of the Collegium prior to 2014 have continued to stand. There is no transparency or accountability in the appointments process. There is no check on appointments being made based on personal preferences of the Collegium rather than merit.And at the end of the day, the Collegium is a judicial invention, created by the Second and Third Judges Cases rather than the text of the Constitution itself.In addition to political criticism of the NJAC judgment, legal experts also raised questions about its reasoning. Kiren Rijiju in December 2021 had noted that retired judges of the Supreme Court itself have now questioned the wisdom of going with the Collegium system, including at least one of the judges who was part of the majority.Justice Kurian Joseph, speaking at events in May and December 2019, said that he 'regrets' his decision in the NJAC case, much like former CJI JS Verma (who had been part of the bench in the Second Judges Case).There are, therefore, arguments in favour of reintroducing the NJAC. This was something which had been expected in the aftermath of the NJAC judgment in 2015 itself, but the Modi government till now had resisted the temptation.Any new attempt at an NJAC will need to ensure that it doesn't fall foul of the reasons why it was struck down in 2015, with the main requirement being that the judicial members should have 'primacy' in the appointments process.

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Explained: What is NJAC Which Govt Might Reintroduce & Why is it Controversial?

In light of the Yashwant Verma case, the Collegium system of appointment of judges is once again facing criticism.